Article 10 of the Criminal Code of the Russian Federation. Retroactivity of criminal law

Criminal Code of the Russian Federation in the latest edition:

Article 10 of the Criminal Code of the Russian Federation. Retroactivity of criminal law

1. A criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of a person who committed a crime, has retroactive effect, that is, it applies to persons who committed the relevant acts before the entry into force of such a law, including persons serving a sentence or those who have served their sentence but have a criminal record. A criminal law that establishes the criminality of an act, increases punishment or otherwise worsens a person’s position does not have retroactive effect.

2. If a new criminal law mitigates the punishment for an act that is being served by a person, then this punishment is subject to reduction within the limits provided for by the new criminal law.

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Comments on Article 10 of the Criminal Code of the Russian Federation

In Part 1 of Art. 10 of the Criminal Code of the Russian Federation formulates the principle of retroactive force of criminal law, which is an exception to the requirements established in Art. 9 of the Criminal Code of the Russian Federation.

The retroactive force of a criminal law can be defined as the extension of the law to regulate those criminal legal relations that arose before its entry into force. According to Part 1 of Art. 10 of the Criminal Code of the Russian Federation, three types of criminal laws have retroactive effect:

eliminating the criminality of an act;
mitigating punishment;
otherwise improving the situation of the person who committed the crime.

⚡ Retroactive force of law in criminal and civil law

Civil legislation is aimed at ensuring stability for all participants in legal relations. That is why we can return to the already mentioned Article 4 of the Civil Code of the Russian Federation - civil regulatory legal acts are valid only for relations that arose after the adoption of such acts.

This is logical and natural. Otherwise, a situation could arise where, say, an agreement was concluded on certain conditions, but then a law came into force that completely changed the essence of these conditions, and thus the situation would simply turn one hundred and eighty degrees.

As for ongoing legal relations, then, as already mentioned, they are subject to laws that were relevant at the time of the emergence (or change) of legal relations. But even if the legal relationship began before the new law came into force, the rights and obligations of persons arising after that will be regulated by the new law.

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In criminal law, the postulate of a non-retroactive law is aimed at protecting the rights of citizens. A legal act that worsens the position of the accused or convicted person, or that establishes the criminality of an act, will never have retroactive effect.

Here you need to remember that the time when the crime was committed will be recognized as the time when it was committed, regardless of the moment the consequences occurred (Article 9 of the Criminal Code of the Russian Federation). The legal norms that were in force at the time the crime was committed must be applied to the accused.

Therefore , no matter how much time has passed between the crime and its discovery and the detention of the suspect, the person will be judged according to the laws that were in force at the time the act was committed , if during this period of time legal norms were adopted that increased the punishment for the perpetrator.

Elimination of criminal acts

A law eliminating the criminality of an act is a law that abolishes criminal liability for this act.

A law that eliminates crime and punishability of an act should be considered a law that:

an article or part of an article on liability for a particular crime is excluded from the Special Part of the Criminal Code of the Russian Federation;
the content of crime-forming elements of the crime changes, which leads to a decrease in the volume of criminal acts (for example, a special motive for the crime is additionally established, or the age of the subject of the crime increases, etc.).

Decriminalization of certain acts can be carried out not only by introducing appropriate changes to criminal legislation, but also by repealing regulatory requirements in other legal acts. For example, the following should also be recognized as a form of decriminalization of crimes:

changes in by-laws of criminal law (for example, resolutions of the Government of the Russian Federation, which determine the list and quantities of narcotic drugs for the purposes of applying the relevant articles of the Criminal Code of the Russian Federation);
changing the blanket regulatory material to which articles of the Criminal Code of the Russian Federation refer when describing the elements of crimes (for example, changing the list of types of activities for which a license is required);
changes to the legislation on administrative offenses, which defines elements of administrative offenses related to crimes (for example, the amount of petty theft).

The retroactive application of a criminal law that eliminates criminality and punishability of acts presupposes:

the impossibility of initiating a criminal case on the facts of committing acts, the criminality and punishability of which has been eliminated, and in relation to the persons who committed such acts;
termination, for lack of corpus delicti, of all criminal cases against persons accused of committing acts that are decriminalized by the new law (Part 2 of Article 24 of the Code of Criminal Procedure of the Russian Federation), with the consent of these persons and without recognizing their right to rehabilitation (Part 4 of Art. 133 Code of Criminal Procedure of the Russian Federation);
exemption from criminal punishment of all persons who are serving a sentence for committing acts that have been subject to decriminalization (clause 13 of article 397 of the Code of Criminal Procedure of the Russian Federation);
expungement of criminal records from persons who have served a sentence for an act decriminalized by the new law.

When has

I agree with the provisions of Art. 45 Part 1 of the Constitution of the Russian Federation, the rights of both persons under investigation and those with a guilty verdict are equal.

The legislation of the Russian Federation provides for cases in which the retroactive force of the law in criminal law is applied.

These include:

Adoption of a new law that eliminates the crime in its essence, that is, decriminalizing it.
Adoption of a new law mitigating punishment.
Adoption of a new law that improves the situation of already convicted citizens.

In the Criminal Practice of the Russian Federation, a large number of crimes were decriminalized after the adoption of the Criminal Code of the Russian Federation in 1996. About 70 crimes under the RSFSR code were abolished. For example, punishment for failure to report, violation of state price discipline, engaging in prohibited types of individual activities, etc. is completely excluded.

As a result of the adoption of a new regulatory legal act (NLA), the act will change from criminal to administrative with the application of sanctions of the Code of Administrative Offenses of the Russian Federation, for minors the age of criminal prosecution under a specific article will change, and an adjustment to the elements of the crime will be made.

For a number of articles, the prescribed punishment may be mitigated. The new law reduces the limits of the term provided for serving the sentence, softens it, and cancels additional sanctions. For example, in Art. 206 of the Criminal Code of the RSFSR provided for criminal liability for damage to property in public transport. The analogue was Art. 214 of the Criminal Code of the Russian Federation - vandalism. The punishment was previously harsher and all sentences were subject to commutation with a reduction in the upper limit of the punishment.

Acts may be excluded from the Special Part of the Criminal Code of the Russian Federation and included in the General Part. Sometimes the reverse process occurs. If, when an article is reclassified, the punishment for it is provided to a lesser extent than in the previously valid wording, we are talking about partial decriminalization.

Often we are talking about reducing responsibility, which happened with the possibility of arresting a minor. Reducing the number of persons who cannot be sentenced to life imprisonment becomes the basis for commuting the sentence. Newly adopted legal acts often establish a more lenient regime for keeping criminals in colonies.

To understand whether a criminal law has retroactive force, it is necessary to study its new editions and those in force at the time of the act committed. If the fact of a change in legal acts is revealed, we are talking about applying a more lenient article.

By virtue of Article 10 of the Criminal Code of the Russian Federation, this force of criminal law extends its effect to two categories of citizens who have common qualities:

persons who committed a crime, but at the time of the verdict the rule of law under the incriminated article changed (simple retroactive effect);
convicts serving a sentence whose sentence has officially entered into force. In this case, the retroactive force of the law can be called revisionary.

In relation to each group, the retroactive force of the law operates with its own procedural features.

If a process or investigation is underway, the incriminated article under which, after the initiation of a criminal case, is decriminalized, then it is closed at any stage, since such an act has become absent from the list of criminal offenses. Convicts are subject to release. There are differences when the rule of law is partially changed. In the first case, the judge passing the sentence reclassifies the article during the legal proceedings.

To understand whether each adopted criminal law has retroactive force, one must look at the history of its amendments. The changed legal regulation, which implies a more serious measure of liability, does not apply to earlier cases.

The investigation of a crime is related to the criminal procedure law. Article 4 of the Code of Criminal Procedure of the Russian Federation stipulates that the case is subject to consideration according to the standards in force at the time the case is considered in court. However, numerous Determinations of the Constitutional Court indicate that all conflicts of law must be resolved in favor of the accused. To the question of whether the criminal procedure law in the country has retroactive force, the Determination of July 10, 2013 No. 270-O clarifies that the Criminal Code and the Code of Criminal Procedure of the Russian Federation are mutually related. Therefore, the possibility of giving retroactive effect to all acts that improve the situation of the convicted person is not excluded. The full version of the Supreme Court decision can be viewed using the Legal Consultant system.

Mitigation of punishment

The law mitigates punishment if it:

excludes any type of punishment from the punishment system;
replaces the type of punishment in the sanction with a more lenient one;
excludes the most severe type of punishment from the sanction;
reduces the minimum and maximum amounts of punishment (in the case when the lower limit of punishment has become softer and the upper limit has become stricter, one should focus on the upper limit, such a law is recognized as more stringent);
introduces a more lenient type of primary or additional punishment into the sanction;
excludes additional punishment;
while maintaining the main and additional punishment, it introduces into the sanction alternatively less severe types of the main punishment, which were not previously provided for by law.
limits the list of persons who may be assigned one or another type of punishment;
reduces the amount of deduction from wages when sentenced to correctional labor, etc.

The retroactive application of a law that mitigates criminal punishment presupposes:

reclassification of all crimes, cases of which are at the stage of preliminary investigation or trial, to a new criminal law;
reduction or change of punishment for persons to whom the previous law was applied, taking into account the provisions of the new law;
in necessary cases, release from punishment in connection with its completion;
reduction within the term of expungement of a criminal record of a sentence that has already been served by the convicted person;
reduction of the criminal record or expungement of the criminal record of persons who have already served their sentence, based on the provisions of the law related to reduced punishment.

Otherwise improving the situation of the person who committed the crime

The retroactive force of the criminal law will occur not only in the case of decriminalization of an act or mitigation of punishment, but also in all other cases when changes in the criminal law are in one way or another connected with improving the situation of the perpetrator. Such an improvement could be, for example:

establishing the possibility of assigning a less strict type of correctional institution;
easing the penal regime
easing conditions of parole;
reducing the statute of limitations for exemption from criminal liability;
reduction of terms for repayment or expungement of a criminal record;
exclusion of a qualifying feature;
conditions for release from criminal liability or punishment.

Options for improving the position of the offender are not limited by law, and the adoption of any of them means the need to apply provisions on the retroactive effect of the criminal law.

The rule on the retroactive effect of a law applies both to persons who committed the relevant act before the entry into force of such a law, and to persons serving a sentence or having a criminal record under an older, more stringent law.

If a new criminal law mitigates the punishment for an act that is being served by a person, then this punishment is subject to reduction within the limits provided for by the norms of both the Special Part and the General Part of the Criminal Code of the Russian Federation as amended by this law (Part 2 of Article 10 of the Criminal Code).

What is retroactive criminal law?

December 20, 2017

In accordance with Art. 10 of the Criminal Code of the Russian Federation, a criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of the person who committed the crime, has retroactive effect, i.e. applies to persons who committed the relevant acts before the entry into force of such a law, including persons serving a sentence or who have served a sentence but have a criminal record.

A criminal law that establishes the criminality of an act, increases punishment or otherwise worsens a person’s position does not have retroactive effect.

The criminal law has retroactive force in the event of eliminating the criminality of the act, mitigating the punishment, or otherwise improving the situation of the person who committed the crime.

A law that eliminates the criminality of an act is a law that abolishes criminal liability for it.

Law mitigating punishment - if the law replaces the type of punishment in the sanction with a more lenient one; excludes the most severe form of punishment from the alternative; excludes additional punishment; introduces a more lenient type of primary or additional punishment into the sanction; reduces the minimum and maximum amounts of punishment (in the case when the lower limit of punishment has become softer and the upper limit has become stricter, one should focus on the upper limit, such a law is recognized as more stringent).

A law that otherwise improves the situation of a person who has committed a crime is recognized, in particular, one that softens the conditions for release from criminal liability or punishment, or reduces the terms for expunging or expunging a criminal record.

The rule on the retroactive effect of a new, more lenient criminal law applies both to persons who committed the corresponding act before the entry into force of such a law, and to persons who have already been convicted and are serving a sentence or have a criminal record under the old, more stringent law.

Provided for in paragraph 13 of Art. 397 of the Code of Criminal Procedure of the Russian Federation, the power of the court to release from punishment or mitigate punishment as a result of the publication of a criminal law that has retroactive effect in accordance with Art. 10 of the Criminal Code of the Russian Federation is one of the most common issues at the stage of execution of a sentence.

The specified question in accordance with Part 3 of Art. 396, paragraph 2, part 1, art. 399 of the Code of Criminal Procedure of the Russian Federation is subject to consideration by the court at the location of the institution executing the punishment, or at the place of application of compulsory medical measures, at the request of the convicted person.

Prepared by the prosecutor's office
of the Zheleznodorozhny district of Ryazan Return
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